Music Stop, Inc. v. City of Ferndale, Civ. A. No. 79-73375.

• Decision Date: 09 April 1980
• Docket Number: Civ. A. No. 79-73375.
• Parties: MUSIC STOP, INC., a corporation, Plaintiffs, v. CITY OF FERNDALE, a corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

488 F. Supp. 390

MUSIC STOP, INC., a corporation, Plaintiffs, v. CITY OF FERNDALE, a corporation, Defendant.

Civ. A. No. 79-73375.

United States District Court, E. D. Michigan, S. D.

April 9, 1980.

Michael L. Stefani, Frank & Stefani Troy, Mich., for plaintiffs.

Robert J. Turner, Ferndale City Atty., Ferndale, Mich., for defendant.

MEMORANDUM OPINION

ANNA DIGGS TAYLOR, District Judge.

On August 13, 1979, the City Council of the City of Ferndale, Michigan, enacted Ordinance 692, which states its short title as being the Paraphernalia Ordinance of the City of Ferndale. The Ordinance declares, at § 3.01, that:

"It shall be unlawful for any person to sell, offer for sale, display, furnish, supply or give away any empty gelatin capsule, hypodermic syringe or needle, cocaine spoon, marijuana pipe, hashish pipe, or any other instrument, implement or device which is primarily adapted or designed for the administration or use of any controlled substance . . .."

The ordinance fixes a penalty of five hundred dollars or imprisonment in the Jail of Oakland County, Michigan, for a period not to exceed ninety days, for its violation. It includes a section of "Definitions", of which the following are here pertinent:

"§ 2.01(3). "Marijuana or hashish pipe": a pipe characterized by a bowl which is so small that the primary use for which it is reasonably adapted or designed is the smoking of marijuana or hashish, rather than lawful smoking tobacco, and which may or may not be equipped with a screen."

"§ 2.01(4). "Paraphernalia": An empty gelatin capsule, hypodermic syringe or needle, cocaine spoon, marijuana pipe, hashish pipe, or any other instrument, implement, or device which is primarily adapted or designed for the administration or use of any controlled substance."

On August 29, 1979, plaintiff, a Michigan corporation with twelve retail stores in the Detroit Metropolitan area, filed this suit for a declaratory judgment that the ordinance violates plaintiff's right to the due process of law as assured by the Fourteenth Amendment of the United States Constitution, by virtue of its vagueness as a penal statute, its infringement upon plaintiff's freedom of symbolic speech, and its placement of an undue burden upon interstate commerce. The defendant municipality has denied any constitutional imperfections. The original jurisdiction of this Court was sought, and is hereby found proper, under 28 U.S.C. § 1331(a), § 1343(3), and 42 U.S.C. § 1983.

On March 20, 1980, plaintiff filed the Motion for Summary Judgment on which the court now rules, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff argues that there is no genuine issue as to any material fact, and that it is entitled to a judgment as a matter of law that the definition of the term "marijuana or hashish pipe" of § 2.01(3) and the definition of the term "paraphernalia" of § 2.01(4) of Ordinance 692 are unconstitutionally vague, and, therefore invalid. This Court agrees.

The material facts are, indeed, altogether undisputed. For the past two years, one of plaintiff's twelve stores in the Detroit Metropolitan area, has been located within the defendant municipality, which is within the Eastern District of Michigan. Plaintiff's merchandise includes phonograph records, tape recordings, and sound accessories of many types, as well as a variety of pipes (some of which have a bowl size as small as a quarter-inch diameter), and smoking accessories including papers, clips, decorative cigarette boxes, incense and incense burners, and jewelry. Plaintiff's stock does not include any hypodermic syringes, needles, scales, razor blades, gelatin capsules, or spoons. Plaintiff is concerned, however, as to what items of its inventory it may or may not be prohibited by Ordinance 692 from selling, and states that it has been unable by investigation to make that ascertainment.

Plaintiff's unrebutted affidavits state that, after implementation of an identically worded ordinance in the City of Novi, Michigan, Novi police officers visited and advised the owners of the "Tobacco Road" accessory shop that they were prohibited by that Ordinance from selling certain water pipes. Identical pipes, however, have subsequently remained available for purchase after police inspection at a Novi branch of "Churchill's", a large metropolitan area chain tobacconist and humidor establishment. The affidavit of the owner of the "Tobacco Road" establishment in Novi attests that Novi police officers have also instructed him that no pipes of any size with ceramic, clay or wooden mouthpieces, and only pipes with plastic mouthpieces, could be sold at his establishment. The affidavits further indicate that the employees of the Novi branch of "Churchill's" were instructed by visiting police officers that the Ordinance permits their continued sale of cigarette papers, but only to persons over the age of 18 whose physical appearance would indicate that they would not use the papers for the smoking of controlled substances. Novi police officers have also prohibited "Tobacco Road" owners from sale of electrical clips which, the officers acknowledge, are permitted to be sold in a Novi electrical supply store.

The affidavits are illustrative of the due process problems inherent in such legislation. In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (at 408 U.S. 108-109, 92 S.Ct. at 2298), Justice Marshall wrote:

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."

Justice...